Polity ‘primer’: ACI’s response

An “Ecclesiology Committee” committee advising the House of Bishops has released a “Primer” on polity prepared with the assistance of various consultants identified at the end of the document. The identity of those preparing this document — most have participated as counsel or witnesses or have been listed as potential witnesses in the various lawsuits — makes obvious that the primary purpose of this document is its perceived usefulness in litigation. ACI principals have also appeared as witnesses in this litigation. This is our response to the claims asserted in this Primer.

1. Claim:

“Final authority in matters concerning all was vested in General Convention and, in due course, Executive Council between Conventions [5]…. From the beginning until now, [the General Convention] has limited its decisions with respect to specific local situations, but in making decisions for the whole church, its authority is supreme [9]…. Episcopalians have, since 1785, consistently assigned final authority and function in our church to the General Convention itself [10].”

ACI Response:

It is likely that the sole purpose of this Primer is to make these two (related) claims about final authority and supremacy. We note the following:

As first written and submitted to the House of Bishops this document read: “‘Metropolitical authority’ (see below) was vested in General Convention and, in due course, Executive Council between Conventions… [5]” and “Episcopalians have, since 1785, consistently assigned the metropolitical authority and function of our church to the General Convention itself [10].” But this language met considerable objection from the bishops who reviewed it in September and it had to be deleted. A vague “final authority in matters concerning all” was subsequently substituted by the drafters of the document, one implication of which is that “final authority” concerning diocesan matters rests with the diocese. And the history of this document and its drafting demonstrate that even the assembled bishops cannot agree with their own “Ecclesiology Committee” as to the nature of TEC polity. In any event, none of the terms “supreme,” “metropolitical authority,” or “final authority” is found in TEC’s Constitution.

Many in TEC assert and sincerely believe these claims about General Convention’s authority, but others do not. This is not new. The nature of TEC’s polity has been the subject of debate for two centuries. TEC’s own expert witness, Bruce Mullin, testified at the recent trial in Quincy that “the question, of course, is how hierarchical it is, and that’s a long-standing debate….”

The authors of this Primer, both in their first draft and in the subsequent document use the proper, legally precise language to describe the authority they would ascribe to the General Convention: “supreme,” “metropolitical authority,” and “final authority.” This is the way these polity concepts are expressed legally. But TEC’s Constitution does not contain these terms or any synonymous language. A simple computer search will confirm this fact. These assertions by the authors of this Primer, therefore, are nothing more than the authors’ projecting into the Constitution what they think should be there, but isn’t.

Prof. Mullin has admitted in testimony in numerous lawsuits that TEC’s Constitution contains no such language:

“the assumptions of the Church Constitution of 1789 were that the General Convention was to be the chief legislative authority and that state conventions would possess only that authority which the General Convention chose not to exercise itself, either expressly or implicitly.” [Emphasis added]

[In the cases of the Methodist, Lutheran and Presbyterian churches] “explicit language of supremacy was necessary…. But in the case of The Episcopal Church in the 1780s, where no such competing authorities existed, language of supremacy in the Constitution was unnecessary and, indeed, inappropriate.”

“Q: Based on that statement, you have made the — you have actually made the statement? A: Yes. Q: That the hierarchical nature of the Episcopal Church is evident, reflected, and the supremacy that that shows continues to be reflected. You use these terms in several sections of your statement. Does that look right to you? A: That looks right to me. Q: Meaning that it is not expressed? A: It is not expressed, yes.”

“Q. Now I think you have testified before that there is no language of supremacy or hierarchy in the Constitution of the Episcopal Church? A: Yes.”

The judge in Quincy heard two weeks of testimony and considered thousands of pages of exhibits and concluded: “There is no explicit provision in TEC’s Constitution or Canons specifying the office or body having supremacy or ultimate authority over the acknowledged Ecclesiastical Authority of a Diocese, i.e., a Bishop or a Standing Committee in the absence of the Bishop….Based upon this record, the court finds that, despite the general hierarchical structure of TEC, the determination that the General Convention is the highest ecclesiastical authority over the disputed property issue is not readily ascertainable.”

If the authors of the Primer would like to see the concepts of supremacy, finality, and metropolitical authority expressed in the Constitution, they should begin the process of amending it to add these concepts. Post hoc, self-serving statements are unlikely to impress courts.

See McCall Affidavit, par. 26-38.

2. Claim:

“Article VII (now Article VIII) required all members of the clergy to “conform” to the “doctrines and worship” of the Church — which are decided by the General Convention [6].”

ACI Response:

This references the Declaration of Conformity, often referred to as the ordination “vows.” The current declaration of course refers to the “doctrine, discipline and worship” of the Church. But the Primer misrepresents the Ordinal and the pledges it requires of ordinands.

The first point to note is that the argument from the declaration of conformity to the supremacy of General Convention is a complete non sequitur. A pledge to conform to the doctrines and worship of TEC does not prove or even evidence the “supremacy” of General Convention, especially when that body is not mentioned at all in the Ordinal.

On its face, the declaration suggests that the doctrines of TEC to which the ordinand pledges conformity are those of the Scriptures, which are in fact explicitly cited: “I do believe the holy scriptures of the Old and New Testament to be the word of God, and to contain all things necessary to salvation: And I do solemnly engage to conform to the doctrines and worship of the Protestant Episcopal Church in these United States.”

This argument then is merely question begging: it assumes what must be proved. If General Convention is indeed the body that has supremacy in the matter of doctrine and worship, that fact would not derive from this declaration but from a stipulation of that supremacy elsewhere. If on the other hand, the doctrines, discipline and worship are determined by Scripture, tradition, the bishops as “guardians of the faith,” the Constitution, the Book of Common Prayer, ecclesiastical common law or diocesan bodies, this declaration promises conformity to the doctrines established by those sources. By itself, the declaration of conformity says nothing about General Convention.

Other churches with metropolitical authority identify the authority explicitly in the ordination vows. (These are surveyed in the Bishops’ Statement at 15-17.) For example, the oath of due obedience in the Church of England is as follows: “In the Name of God, Amen. I, N., chosen Bishop of the Church and See of N. do profess and promise all due reverence and obedience to the Archbishop and to the Metropolitical Church of N. [Canterbury or York] and to their Successors : So help me God, through Jesus Christ.” If the Primer is correct and General Convention was intended to function as a final or metropolitical authority, it would have been a very simple thing to modify the vows from the Church of England only slightly and require the ordinand to recognize General Convention as the supreme governor of the church and promise “due obedience” to the “metropolitical church of the Protestant Episcopal Church in the United States.” But the founders did not do that, and it is obvious that this omission was intentional given the precedents from which they were explicitly deviating.

For priests and deacons, obedience is pledged only to the diocesan bishop, not to General Convention. Bishops do not pledge obedience to any other office or body but affirm the following: that ”with your fellow bishops you will share in the leadership of the Church throughout the world.” There is no mention of General Convention in the Ordinal; instead the emphasis is on “fellow bishops” and “the Church throughout the world.” The complete absence of reference to General Convention in the Ordinal together with the affirmations of episcopal ordinands indicates a truly “episcopal” church.

See McCall Affidavit, par. 113-24.

3. Claim:

“From the beginning, the first Constitution made it clear in its second Article that “if … no deputies either lay or clerical, should attend at any General Convention, the Church in such state shall nevertheless be bound by the acts of such Convention [6].”

ACI Response:

This claim is legally uninformed and intellectually irresponsible. The legal language “bound by” as used in the 1780s has been analyzed in one of the most influential law review articles of recent years. This language does not mean what the authors of this paper imply. In any event, this language was completely removed from TEC’s Constitution over a hundred years ago.

The place to start in considering this provision is to note that it applies by its own terms only to those state churches that did not send representatives to General Convention. This apparent oddity signals right away that the purpose of this provision is something other than to serve as a half-baked supremacy clause for a church whose legal draftsmen did not know how to formulate a proper one. What this provision seems to be addressing is one possible understanding of General Convention actions: that they did not apply to a state church until they were ratified in some fashion, either by the state’s representatives to the General Convention (as the constitution itself was ratified—see below) or by action of the state convention.

This issue paralleled the debate over the legal effect of acts of the United States Congress under the Articles of Confederation. A widely held view was that congressional acts had to be further enacted by the state legislatures in order to become binding law. Until so enacted, they were only requests; Congress was in effect a consultative, not a legislative, body. In the case of TEC, because the ratification by the state churches of the initial constitution took the form of ratification by their duly authorized representatives at the General Convention, it was a reasonable interpretation that the actions of General Convention would require similar ratification. In fact, this was one of two possible theories of General Convention’s authority offered as late as 1850. (Murray Hoffman, A Treatise on the Law of the Protestant Episcopal Church in the United States, (New York: Stanford and Swords, 1850), 108.)

This ratification would not have been given by a state church that sent no representatives, and General Convention actions would have no legal effect in such a state if the General Convention were purely a consultative body like some thought the Congress of the Confederation was. The language quoted above answered this question and merely indicated that General Convention was a legislative, not a consultative, body. It said nothing about hierarchy or supremacy.

This same language (“bound by” or “binding”) was used of congressional acts under the Articles of Confederation and of federal laws in the United States Constitution of 1789. The original author of this language was John Jay, the Foreign Secretary during the Articles of Confederation period and also an influential deputy to the organizing conventions of TEC. In the context of legislative bodies, this language was used as a term of art in that period.

This very language has been analyzed by Professor Caleb Nelson of the University of Virginia Law School in a prominent law review article that won the Scholarly Papers Competition of the Association of American Law Schools in 2000. (Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 256-57 (2000).) Although Nelson analyzes this language in the context of its civil legal usage, he relies primarily on the work of two prominent lawyers, John Jay and Judge James Duane, who were active participants in TEC’s organizing conventions. Duane was on the committee that drafted TEC’s first constitution. Nelson shows conclusively that this language does not signal legal supremacy, as the Primer’s superficial reading implies. This is why the United States Constitution contains a “Supremacy Clause” using the standard legal language of supremacy. Duane and Jay knew how to express legal supremacy. They intentionally chose not to give this authority to the General Convention.

See McCall Affidavit, par. 146-57.

4. Claim:

“That third [1789] General Convention met and adopted the first Constitution and Canons (unlike the United States Constitution, which was ratified by the individual states) [6]…. So the General Convention created and adopted the Constitution, without referring it first to the several state conventions (in fact it was originally their reason for being) [9].”

ACI Response:

This is a misrepresentation of the process by which the Constitution was adopted. It was not adopted by General Convention as an entity, whether by a majority of votes or even by a majority of votes by orders or states. It was adopted by the duly authorized representatives of each state church, who signed the Constitution on behalf of their state churches.

The procedure followed by TEC was identical to and used the very same language as that used for the ratification of the Articles of Confederation, the constitution in effect among the thirteen states when the TEC constitution was drafted.

The organizing General Convention in 1786 passed the following resolution:“Resolved, that it be recommended to the Conventions of this Church in the several States represented in this Convention, that they authorize and empower their Deputies to the next General Convention, after we shall have obtained a Bishop or Bishops in our Church, to confirm and ratify a General Constitution, respecting both the doctrine and discipline of the Protestant Episcopal Church in the United States of America.”Note that the authorized deputies from the state churches will be the ones to “confirm and ratify.” The resolution does not contemplate that General Convention as a body will do so.

At the next convention in July 1789 one of the first items of business was “The Deputies of the several States being called upon to declare their powers relative to [the resolution quoted above] gave information that they came fully authorized….” The Constitution was signed by state deputations with the number of signatories for each state varying from one to eight. It was not adopted by “General Convention” as an entity; it was adopted by state churches at a General Convention, just as the Articles of Confederation were adopted by the American states using the same language of “ratify and confirm.”

With modifications, this procedure is still used for amendments to the Constitution and Book of Common Prayer, which must be passed by a majority of dioceses voting by orders after formal notification of proposed changes is submitted to the dioceses.

See McCall Affidavit, par. 91-96.

5. Claim:

“There is no record of any congregation in the United States that did not accede unconditionally and irrevocably to the authority of the General Convention of the Episcopal Church [7].”

ACI Response:

Again, this misrepresents the constitutional process. Dioceses do not accede to “the authority of the General Convention.”

Until recently, dioceses acceded to the Constitution. New dioceses now accede to the Constitution and Canons. But in both cases, old and new, this is accession to a constitutional form of government not accession to “the authority” of one of the many bodies established or identified in the Constitution, particularly when that body oversteps its constitutional authority.

This claim is another instance of question-begging by the authors of this paper: they merely assert what must be proved. The act of accession would acknowledge “the authority” of the General Convention only if some provision of the Constitution made General Convention supreme. But there is no such provision. On our analysis, accession acknowledges diocesan autonomy because that is the form of constitutional governance established by the Constitution, which states that it “sets forth the basic Articles for the government of this Church.”

Accession in any event is not irrevocable. TEC itself gave an accession (without conditions) to the constitution of the Anglican Consultative Council in 1969. That accession was neither irrevocable nor an indication of the ACC’s supremacy. No one seriously maintains that it has that effect.

See McCall Affidavit, par. 137-44.

6. Claim:

“Over and over, the foremost nineteenth- and twentieth-century commentators on the government of The Episcopal Church have refuted this [“states’ rights”], and General Convention has never accepted any legislation tending in that direction. While each diocese has significant latitude in ordering its life in adaptation to its local needs, it cannot make decisions that affect the whole Church, including itself [9].”

ACI Response:

This is another statement that had to be revised after the draft was presented to the House of Bishops. The last sentence quoted above originally read “There is no such thing as an ‘independent diocese’.” As now worded, the statement is incoherent: no one has ever claimed that an individual diocese can make decisions for other dioceses or the “whole Church,” whatever that comprises.

In fact, as Prof. Mullin acknowledged in the Quincy trial there is “a long-standing debate” about the nature of the hierarchy in TEC. The authors of the Primer rely primarily on nineteenth legal commentators in this sentence, but have dismissed contemporaneous analyses by bishops of the Church. For example, in a book published in two editions (1841 and 1879) Bishop Thomas Vail of Kansas reached the following conclusions, noting that his work had also been endorsed by the Bishop of Connecticut (and future Presiding Bishop) Thomas Brownell and by the future Bishop of Maine George Burgess:“Furthermore, each Diocese is absolutely independent, except in certain particulars, wherein, by its own voluntary union with the others, it transfers its own authority to the General Convention. The connection or union of each Diocese with the others, through the General Convention, is perfectly voluntary; and any diocese has a right to withdraw from that connection for absolute urgent cause morally justifying the annulling of its pledge. The Church has never anticipated such a case in her legislation, nor had occasion to fear it. The only penalty for so doing exists in nature — the inconveniences attendant upon such a withdrawal, and the sense of having departed from the most perfect unity of the Church in our country.” (Thomas H. Vail, The Comprehensive Church or, Christian Unity and Ecclesiastical Union (Hartford: H. Huntington, 1st ed. 1841, New York: D. Appleton, 2nd ed. 1879), 95-96.)

See McCall Affidavit, par. 159-84.

7. Final ACI Response:

The paper ignores the legal structure of TEC, which is that of a voluntary association of dioceses.

“Voluntary association” is a technical legal term for a type of legal entity. Not only is it a legal term of art, it was used by William White in its correct legal sense when describing the organization he contemplated for TEC.

TEC is a voluntary association of dioceses. This is apparent from the accession article of the Constitution, already discussed, which provides only for dioceses to join the association. This was also the conclusion of one of the first resolutions passed by the organizing conventions of TEC: only state churches (dioceses) could join. This structure is confirmed by the representation (equal) and voting (votes by orders are votes by dioceses) provisions specified in the Constitution.

The legal structure an organization chooses determines to a large extent the legal rights and duties of the various parties participating in it. TEC’s structure as a voluntary association of dioceses reflects the basic understanding of diocesan autonomy found elsewhere in the Constitution.

One of the contributors to this paper recognized this fact in a paper published as recently as 2006. Bishop Franklin, although supporting the notion of General Convention as the “ultimate” ecclesial authority “in the United States,” concluded that TEC is organized as a “loose association of dioceses” and that one of the “strengths” of TEC polity is “protection of the synodal authority of the local church, the diocese, within a national federation of dioceses.” (R. William Franklin, “American, Anglican and Catholic,” in M. Dutton and P. Gray, eds., One Lord, One Faith, One Baptism (William B. Erdmans 2006), 126-27.)

When the Diocese of Los Angeles refused to cooperate with the ecclesiastical court conducting the trial of Bishop Charles Bennison, the court ruled in 2009 that it had no power to compel such cooperation because the diocese was “a wholly autonomous entity.” (See Bishops’ Statement, p. 15.)

Indeed, on the same day the draft Primer was discussed by the bishops, they also received a report from the official TEC task force on re-structuring the church that concluded: “After the American Revolution, The Episcopal Church was reorganized as a constitutional confederacy of semi-autonomous dioceses joined by a minimal constitution. There was no standing churchwide structure, budget, or program as we think of it today, only the periodic gatherings of General Convention.”

See McCall Affidavit, par. 15-25.

The Bishops’ Statement on the Polity of The Episcopal Church (April 2009) can be read here.